R v Sullivan [2002] NSWCCA 505

New South Wales Court of Criminal Appeal

CITATION : R v Sullivan [2002] NSWCCA 505 FILE NUMBER(S) : CCA 60256/02 HEARING DATE(S) : 16/12/02 JUDGMENT DATE : 16 December 2002

PARTIES : Regina v Kyle Terrence Sullivan JUDGMENT OF : Giles JA at 32; James J at 1; Hidden J at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1095 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : AC Haesler - Appellant PE Barrett - Crown SOLICITORS : DJ Humphreys - Appellant SE O'Connor - Crown CATCHWORDS : Criminal law - conviction appeal - s 20(2) Evidence Act - Comment made by trial judge - accused not giving evidence - application of proviso. DECISION : Appeal against conviction dismissed

IN THE COURT OF CRIMINAL APPEAL 60256/02

GILES JA JAMES J HIDDEN J

MONDAY 16 DECEMBER 2002 REGINA v KYLE SULLIVAN Judgment

1 JAMES J: Kyle Terrence Sullivan has appealed against his conviction, after a trial in the District Court before his Honour Judge Gibson QC and a jury, on three counts of dangerous driving occasioning grievous bodily harm, an offence under s 51A (3)(c) of the Crimes Act. An application for leave to appeal against the sentences imposed by Judge Gibson was filed, but was subsequently abandoned. 2 The trial at which the appellant was convicted was a joint trial of the appellant and another man named Browning, who was also charged with three counts of dangerous driving occasioning grievous bodily harm arising out of the same incident. At the conclusion of the Crown case, his Honour Judge Gibson directed the jury to return verdicts of not guilty on all three charges against Browning and the jury returned verdicts of not guilty in accordance with his Honour's directions. 3 The Crown case against the appellant at the trial can be briefly summarised as follows. 4 At about 8.30pm on the evening of 1 June 2000 the appellant and Browning, who did not know each other, were each driving vehicles in a north-westerly direction in Richmond Road between Blacktown and Richmond. In this section of Richmond Road there are two marked lanes in each direction with a raised median strip about three metres wide. The appellant was driving a Holden utility and Browning was driving a Pontiac Transam car. The appellant and Browning were observed by a number of other road users to be travelling fast, to be travelling close together and to be weaving in and out of other traffic, and they appeared to be racing each other. The two vehicles stopped at the traffic lights at the intersection of Richmond Road and a road called Breakfast Road, and, when the lights turned green, the two vehicles moved off together. 5 At a point in Richmond Road, somewhere between the cross streets of Breakfast Road and Falmouth Road, the utility being driven by the appellant was in the lane closer to the median strip and the Transam was in the lane closer to the kerb. The utility was slightly in front of the Transam, but the two vehicles were close together. The appellant attempted to move into the lane closer to the kerb, so as to overtake a vehicle travelling in front of the utility in the lane closer to the median strip. The utility collided with the front offside of the Transam. The utility then collided with the vehicle travelling in front of it in the lane closer to the median strip, a Hyundai, in which one of the victims who sustained grievous bodily harm was a passenger. As a result of this collision, the Hyundai was forced across the median strip onto the top of another vehicle, a Daihatsu, which was travelling in the opposite direction, that is, in a south-easterly direction. The other two victims who suffered grievous bodily harm were occupants of the Daihatsu. 6 The appellant regained control of the utility, re-crossed the median strip, and drove off in a north-westerly direction. He was followed for some distance by another motorist. Mr Browning stopped his vehicle on the side of Richmond Road at the scene of the accident. The motorist who followed the appellant and some other motorists who witnessed the accident reported the accident to the police. The appellant was spoken to by police the following day and he participated in an electronically recorded interview. The recording of the interview was admitted into evidence at the trial. 7 The Crown case against the appellant was based on two grounds: (1). that the appellant had engaged in a course of competitive driving with Browning which had culminated in the accident. (2). that the appellant was guilty of dangerous driving in attempting to change lanes immediately before the collision. 8 At the trial the appellant made a number of admissions, including that he had been driving the Holden utility that had collided with each of the Transam and the Hyundai and that the Hyundai had collided with the Daihatsu and that as a result of the collisions an occupant of the Hyundai and that two occupants of the Daihatsu had sustained injuries which could be regarded as grievous bodily harm. 9 The appellant did not give evidence at the trial and did not call any witnesses. In answers in the interview the appellant admitted that he had been the driver of the utility and that he had been travelling in the lane closer to the median strip. He said that the exit to the left, which he wished to take, was coming up, and the appellant had attempted to move into the lane closer to the kerb but "I got clipped by another vehicle. From where it came, I don't know". He said that he had not seen the other vehicle with which he had collided. If he had, he would not have attempted to change lanes. He denied that he had been racing with any other vehicle. In another answer the appellant said, "Had I noticed the vehicle on my left, there is no way I would have attempted to change lanes at all. I didn't even see him then". In another answer he said, "I'd say I am partially negligent for not checking if I had clearance to change lanes, which is what started it". 10 There were three grounds of appeal which I will deal with in turn.